Q and A on United States v. Stevens Oral Argument With Tom Baker

Can you briefly review how this case got to the Court?
There are several reasons why this case is "certworthy," i.e., why the Supreme Court would grant the petition for certiorari to hear this case out of the thousands that are denied review every year. (According to the HARVARD LAW REVIEW, in the October Term 2007, only 95 out of the 8,374 petitions were granted – all the rest were denied review without any further action. If you are interested in more docket statistics, visit: SCOTUSWIKI.COM.)

First, this was a somewhat controversial statute when it was enacted in 1999. The statute, 18 U.S.C. § 48, makes it a federal crime to create, sell, or possess depictions of "animal cruelty" punishable by a fine or imprisonment up to 5 years. At the time, Congress was preoccupied with a particular category of fetish films that were being trafficked on the internet: " crush videos" in which a camera is focused close-up on the high-heeled feet of a woman as she steps on small animals and grinds the life out of them. The statute, however, was written more broadly than that peculiarly grotesque fetish.

Second, this was the very first prosecution under the statute and it was brought against a dealer — Robert J. Stevens — who allegedly was in the business of producing and selling "dogfight" videos through his website "DOGS OF VELVET AND STEEL" ( http://pitbullife.com). Stevens himself did not stage the dogfights; he used vintage film footage from dogfights in Japan, where dogfighting is not illegal. He was convicted and sentence to 37 months in prison. Obviously, dogfighting is a notorious subject for a federal prosecution, all the more notorious after the national attention on the investigation and prosecution of NFL star Michael Vick for engaging in actual dogfighting. Dogfighting is illegal in every state. This statute criminalizes selling videos of dogfighting on the theory that will reduce actual dogfighting. The internet dimension of this case also made it interesting. Many people are aware of the burgeoning business of pornography on the internet, but this statute brought attention to the increase of violent videos. This case raises free speech issues which are always interesting (I coauthor a textbook on the first amendment, so at least they are always interesting to me).

Third, when the conviction was appealed, the U.S. Court of Appeals for the Tenth Circuit reviewed the case en banc — all the judges on the court reheard arguments and divided 10 to 3 to set aside the Stevens' conviction. The majority opinion declared the statute unconstitutional and struck it down. That tends to get the attention of the Supreme Court justices.

Fourth, the U.S. Solicitor General was the party petitioning for review. The Solicitor General is the office that represents the United States before the Supreme Court and the justices tend to pay more attention to requests from it.

Finally, for more information on the case, check out my PREVIEW article in which I break down the issues and summarize the arguments in the briefs. There were numerous amicus curiae or "friend of the court" briefs that also are available online at the briefs page of the PREVIEW website. See also SCOTUSWIKI.COM.

How did the oral argument go?
The transcript of the oral argument in this case is available at the Supreme Court website. As expected, the argument was animated by many questions and imaginative hypotheticals. Reading it, you got the feeling that the justices were keenly interested in these issues. Indeed, in an unusual gesture, Chief Justice Roberts complimented the attorneys on both sides of the case for their "very able presentation." The justices certainly seemed solicitous of free speech and they expressed their concerns for protecting the values of the First Amendment even for low value speech or controversial speech, like dogfight videos. However, no one at the oral argument — none of the lawyers and none of the justices — made any noises that "crush videos" were protected free speech. Everyone apparently assumed that those paraphilia videos would meet the definition of unprotected obscene speech and could be criminalized.

What do you think was the strongest argument?
Probably the winning argument at oral argument was the First Amendment overbreadth doctrine, which had figured in the lower court decision and which dominated Respondent Robert Stevens’ brief. The basic approach of the overbreadth doctrine is for the reviewing court to measure the precision of a law. The court has to compare how much unprotected speech is covered with how much protected speech is covered by the statute. If a significant amount of protected speech is covered and comparatively little unprotected speech is covered, the constitutional cost/benefit ratio is not good.

The thrust of the various justices’ questions and their hypotheticals sought to apply this metric. The justices seemed to admit that the statute on its face might have had some possible and permissible (constitutional) applications to films like "crush videos" that are unprotected speech because they are obscene. But they spun numerous hypotheticals of impermissible (unconstitutional) applications and the impermissible applications seemed to predominate their concerns. Justice Scalia seems to have a thing for bullfighting and hunting videos (He is an enthusiastic hunter but as far as I know he has never fought a bull.) Justice Stevens also asked about bow-and-arrow hunting videos. Justice Ginsburg asked about the differences between bullfighting, cockfighting, and dogfighting. Justice Breyer asked about whale hunting and force feeding ducks to produce foie gras. There was talk about repulsive scenes in Hollywood movies and documentaries on violent and disturbing subjects. And it came up repeatedly that organizations like People for the Ethical Treatment of Animals ( PETA) and humane societies use ugly depictions of animal abuse and torture to bring attention to their causes. Indeed, Justice Sotomayor asked about the film documentary exposing the cruelty of dogfighting by David Roma. However, everyone assumed, even the attorney for the Government, that those advocacy uses of such depictions were protected speech under the First Amendment.

During the Government's argument, Justice Breyer mentioned that Congress could simply write a constitutional statute limited to "crush videos," if that is what Congress really wanted to do, and thereby avoid any First Amendment issues about chilling protected free speech. (Characteristically, he said, "I am not giving Congress advice, though I seem to be.") But even this expression of judicial deference necessarily implied that the statute Congress actually did write was overly broad and not sufficiently narrow or limited to pass constitutional scrutiny.

Was there a weak argument?
There was a "dog that did not bark" in the courtroom. In its written brief filed with the Court, the Solicitor General pushed the audacious argument that the Supreme Court should recognize a new category of speech that is not protected by the First Amendment and label it animal cruelty. The briefs relied on an analogy to an earlier precedent upholding federal child pornography laws. New York v. Ferber, 458 U.S. 747 (1982).

The existing categories of speech that have been determined to be unprotected include: fighting words, Chaplinsky v. New Hampshire, 315 U.S. 568 (1942); threats, Watts v. United States, 394 U.S. 705 (1969); speech that incites imminent illegal activity, Brandenburg v. Ohio, 395 U.S. 444 (1969); obscenity, Miller v. California, 413 U.S. 15 (1973); and child pornography, New York v. Ferber, 458 U.S. 747 (1982).

Perhaps because the Government came around to recognizing the unsoundness or unpersuasiveness of that far bolder argument, Assistant Solicitor General Neal K. Katyal shifted to a far more modest tactic at oral argument before the justices. He argued that the statute was narrowly drafted and therefore constitutional for two reasons. First, the statute defined the "depiction of animal cruelty" to mean a depiction "in which a living animal is intentionally maimed, mutilated, tortured, wounded, or killed, if such conduct is illegal under Federal law or the law of the State." Second, the statute expressly excluded "any depiction that has serious religious, political, scientific, educational, journalistic, historical, or artistic value." These two limitations were repeatedly challenged by the justices, however, in numerous hypotheticals and questions. The best that the Government could do to respond to those counter-examples was to promise that if any valuable speech ever was actually prosecuted under the current statute then the courts could rule those applications were unconstitutional, which would protect free speech and still leave the statute on the books.

The leitmotifs of the oral arguments from both sides were the overbreadth and vagueness of the statute.

Were there any questions or discussions that surprised you?
Only Justice Alito seemed to stick up for Congress and its statute, but I am not sure if he was being sincere or merely trying to be provocative. He suggested at one point that perhaps the statute had the intended effect of drying up the market for unprotected "crush videos" while not harming too much other protected speech like hunting videos — notice how his comparison runs the overbreadth analysis but it comes out in favor of the statute. At one point in the argument, he pushed Patricia Millett, the lawyer for the Defendant-Respondent Stevens and a veteran Supreme Court advocate, to disengage from the justices’ many fanciful hypotheticals and address what was going on in the real world. He wondered out loud if the statute has had the effect Congress intended, i.e., to reduce the demand for commercial, for-profit depictions of animal cruelty over the last ten years it has been in effect. At one point, he strung her out rhetorically by asking if the Government could ban a live, pay-for-view "human sacrifice" channel on cable television, a hypothetical that other justices also pursued with her. She kept going back and forth and a few times came close to admitting that perhaps Congress could legislate against such videos, but she insisted that Congress could not censor such a channel for the only reason that Congress did not approve of its programming content. Managing to mix metaphors vividly, she ultimately objected to the statute in this case by telling the justice that when Congress writes laws that affect free speech it must "write with a scalpel and not a buzz saw."

What was the media coverage of the argument like? If there was any, do you think it was a fair representation?
The media coverage was balanced and fair. Reporters on the oral argument seemed to relish the back-and-forth and the imaginative hypotheticals of the justices. The oral argument made the network nightly news programs and NPR.

Here is a representative sample of the lively press accounts of the oral argument: Adam Liptak, Court Hears Free-Speech Case on Dogfight Videos , N.Y. TIMES (Oct. 6, 2009); Dahlia Lithwick, This Case is a Dog: The Supreme Court Mauls the Law Banning Animal-Cruelty Videos , SLATE.COM (Oct. 6, 2009); David G. Savage, Justice Consider Law Banning Depictions of Animal Cruelty , L.A. TIMES (Oct. 7, 2009); Paula Reed Ward, Justice Hear Dogfight Over Speech, Animal Rights , PITTSBURGH POST-GAZETTE (Oct. 7, 2009).

Almost all the op-eds that I saw came down on the side of protecting free speech, even the videos here are violent and disturbing, but only up to a point. Not surprisingly, no editor took the absolutist view that “crush videos” ought to be protected under the First Amendment. A few editorials, however, were willing to approve criminalizing the trafficking in depictions of dogfighting if that was necessary to put an end to dogfighting.

Any guesses on how the case will be resolved? Did any of the justices show their hand?
A wise constitutional law professor once observed, "Those who gaze into their crystal ball to predict the outcome from the oral argument are destined to dine on ground glass." But the tenor of the justices’ questions and comments during argument was deep constitutional skepticism towards the broad approach taken in this statute to criminalize depictions of "animal cruelty."

It would not surprise me if there is a unanimous Supreme Court decision to strike down the current statute. However, it further would not surprise me if different justices followed different analyses to reach that result. Most, if not all, of them seemed willing to express their dissatisfaction with the Government's brief argument to designate depictions of animal cruelty as a new category of low value, unprotected speech. Some may concur to strike down the current statute but allow for the possibility that Congress might rewrite the definition and exceptions in a way that would pass constitutional muster. Some may concur to strike down the statute with a message warning Congress not to try to rewrite the law. However, all of the justices seem ready, able, and willing to uphold a narrow, specific statutory ban on "crush videos" under the existing law of obscenity under the First Amendment, so Congress may have the last word. But it looks like Robert Stevens is not going to prison.

Thomas E. Baker
Professor of Law
Florida International University
College of Law